On June 12, 2025, the Canadian Securities Administrators ("CSA") published Notice and Request for Comment – Proposed Repeal and Replacement of National Instrument 43-101 Standard of Disclosure for Mineral Projects (the "Notice"), describing the CSA's proposal to repeal and replace the current National Instrument 43-101 Standards of Disclosure for Mineral Projects (the "Instrument"), Form 43-101F1 Technical Report (the "Form"), and Companion Policy 43-101CP to the Instrument (the "Companion Policy").
While the majority of the proposed amendments to the Instrument, Form, and Companion Policy (the "Proposed Amendments") relate to codifying current practices and making minor changes, certain aspects of the Proposed Amendments may require issuers to change their current practices. The CSA has opened a 120-day comment period ending October 10, 2025, with respect to the Proposed Amendments.
Our Mining Law team at McMillan will continue to provide updates, including a comprehensive overview of definitional changes and reorganization of disclosure, to assist in day-to-day application of the Proposed Amendments as they become law. This bulletin is intended to focus on substantive changes that may impact mining issuers.
Qualified Persons
Currently, to be a "qualified person" ("QP"), an engineer or geoscientist must be in good standing with their professional association and have at least five years of experience. Regulators have recently taken to interpreting this as requiring five years of good standing – effectively combining the two separate requirements into one. The Proposed Amendments remedy this discrepancy between the language of the instrument and its application, resolving it by expressly requiring five years of membership in a professional association.
Historical Estimates
Issuers seeking to disclose historical resource or reserve estimates on mineral projects currently need to, among other things, comment on the relevance and reliability of the historical estimate they wish to disclose. The Proposed Amendments do not permit statements that limit reliance on pieces of disclosure, and require the QP and the issuer to take responsibility for all such disclosure. This has a number of impacts. Firstly, a QP would need to take responsibility for a historical estimate notwithstanding the fact that they would typically not have participated in its preparation. Secondly, issuers will be forced to think more carefully about the suitability of such historical estimates for public disclosure as disclaimers and other statements of non-reliance are proposed to be expressly prohibited. Further, in technical reports, as discussed further below, there is no ability to outline where there are limitations on the ability to verify data, which is inclusive of historical data.
Indigenous Peoples
Updated requirements to the Form related to describing an issuer's mineral properties now require a list of all permits or agreements required, including those that may be required under law with respect to Indigenous peoples. This disclosure is intended to apply to mineral properties globally, rather than exclusively within Canada. In Canada, the law requires the Crown, in right of Canada and each of the provinces, to consult, and if necessary, accommodate Indigenous peoples and their constitutionally protected rights – not issuers. Voluntary agreements are a norm as part of good and responsible business conduct.
Generally, with some important exceptions, the law in Canada does not require issuers to enter into specific types of agreements with Indigenous peoples. However, the law in Canada continues to evolve, with for example, legislation implementing the United Nations Declaration on the Rights of Indigenous Peoples, as well as government policy tools relating to co-governance. How such laws may mandate issuers to enter into agreements with Indigenous peoples remains unknown. Issuers may need to involve legal counsel in providing such information to the technical report author in order to ensure accuracy in this information.
Additionally, the Form will need to provide the status and dates of any negotiations with Indigenous Peoples, and disclose the agreements entered into in connection with the same. Issuers operating in territories which may impact multiple Indigenous peoples or are the subject of competing or overlapping land claims may then be in a position of having to disclose publicly the frequency and depth of negotiations with various indigenous partners during potentially complex discussions.
Current Inspection Requirement for Technical Reports
While technical report authors complete inspections in connection with the authoring of the reports under the Form, the Proposed Amendments create a new section of the Form to address these inspections. Of note, the deferral of an inspection due to inaccessibility of a site due to seasonal weather-related issues that currently exists in the Instrument is proposed to be removed. Issuers will no longer be permitted to file a technical report with a re-filing obligation after the seasonal access restrictions cease, as a way of managing filing obligations with respect to technical reports during periods where extreme weather make access to sites unsafe or undesirable. This highlights the regulator's continuing view of the importance of personal inspections.
Data Verification
In the proposed version of the Form, technical reports must have an outline of the process each QP who authored an item in the technical report undertook with respect to data verification. Additionally, where it is currently possible for an author to address any limitations or failures to verify data, in the Proposed Amendments, this is removed from the Form.
Confusingly, in the Instrument itself, a qualified person continues to be able to discuss limitations on data verification. The result may be that, though data verification can be limited for the purpose of general continuous disclosure obligations of an issuer, if the data appears in a technical report, the author must have verified it.
There are also added general requirements to data verification, which in the Proposed Amendments include a description of the steps that were taken by the QP to confirm that the data was generated using industry standards, was accurately transcribed, and is suitable for use. While the requirement to verify acceptable procedures, accurate transcription and suitability is currently contained in the definition of "data verification", the Proposed Amendments now require disclosure around how each of these items was determined as opposed to the broader requirement currently in place to provide a "description of how the data was verified".
Economic Analysis
Presently, a technical report which includes an economic analysis must include a discussion of net present value (NPV), internal rate of return (IRR), and payback period of capital. The new Form requires a presentation of both pre-tax and post-tax NPV, and specifies that the discussion related to NPV, IRR and payback of capital must include a description of how each figure was arrived at.
The proposed Form also tweaks existing concepts to require a greater emphasis on the discount rate selected for the purposes of the economic analysis in the technical report. Cash flow forecasts are required to be presented on a discounted basis, and a sensitivity analysis showing the impact on the financial results stemming from a range of discount rates will also need to be included. The proposed Companion Policy specifies that the risk adjusted discount rate should include a discussion of what the forecast entails, specifically discussing the analysis within the context of the project itself, related to jurisdiction of operation, type of commodity or deposit, or similar factors.
Removal of Exemptions to Portions of Technical Report Disclosure for Issuers without Advanced Projects
The current requirements of the Form include disclosure around items intended for only those with advanced properties. The Proposed Amendments remove this differentiation between advanced properties and other properties, including "early stage exploration properties" (which have no resources or reserves, and no drilling or trenching proposed), and require the Form apply uniformly to all, though suggest that if specific items are not relevant, that the author of the technical report can state as such.
For example, currently only issuers with advanced properties would need to discuss contracts required to develop the mineral project, however notwithstanding the fact that projects without resources or reserves may not have a clear pathway to commercialization, they may have a general assessment of what would be required to proceed to development, and as such, this type of disclosure could theoretically be made or implicated.
The result of requiring that the Form for technical reports has all items apply to all issuers is that authors will need to be more thoughtful about whether certain items may apply notwithstanding the fact that a property may not have resources or reserves, or any proposed drilling or trenching.
These are only select changes incorporated into the Proposed Amendments, which move beyond updates or clarifications and appear to be substantive differences in the disclosure requirements. The CSA has additionally proposed a range of other non-controversial updates which we expect will be less concerning to issuers.
The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.
© McMillan LLP 2025
